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Secard Pools Inc v. Kinsale Insurance Co.

United States District Court, C.D. California

April 3, 2017

SECARD POOLS, INC., a California Corporation; JOE SECARD, an individual; and EDMOND SECARD, an individual, Plaintiffs,
v.
KINSALE INSURANCE COMPANY, an Arkansas Corporation; DOES 1 through 100, inclusive, Defendants.

          JUDGMENT

          HON. JOHN F. WALTER UNITED STATE DISTRICT JUDGE

         On February 21, 2017, defendant Kinsale Insurance Company (“KINSALE”) filed its Motion for Summary Judgment (Dkt. # 25). Plaintiffs Secard Pools, Inc., Joe Secard, and Edmond Secard (the “SECARD PARTIES”) timely filed an Opposition on March 6, 2017 (Dkt. # 38). On March 13, 2017, KINSALE filed its Reply (Dkt. # 40). The SECARD PARTIES also filed a Cross-motion for Partial Summary Judgment (Dkt. # 30), to which KINSALE filed Opposition (Dkt. # 32) and the SECARD PARTIES filed a Reply (Dkt. # 43).

         On March 23, 2017, pursuant to Fed.R.Civ.P. 78 and Local Rule 7-15, the Court determined that KINSALE's Motion for Summary Judgment and the SECARD PARTIES' Cross-motion for Partial Summary Judgment were appropriate for decision without oral argument and vacated the hearing set for March 27, 2017. (Dkt. # 48). On March 28, 2017, the Court issued an Order GRANTING KINSALE's Motion and DENYING the SECARD PARTIES' Motion as moot (Dkt. # 51) and issued its Statement of Decision specifying the reasons for said Order. (Dkt. # 52).

         NOW THEREFORE, having considered KINSALE's moving papers, the Opposition filed by the SECARD PARTIES, the Reply filed by KINSALE, and the evidence presented having been fully considered, the issues having been duly heard and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED as follows:

         A. The following material facts are established:

         1. On November 21, 2014, Solar Sun Rings (“SSR”), a competitor of Secard Pools, Inc. (“SECARD POOLS”), filed an action in the Central District of California entitled Solar Sun Rings, Inc. v. Secard Pools et al., USDC Central District of Cal. Case No. 5:14-cv-02417 (the “SSR Action”).

         2. In the SSR Action, SSR alleged that Secard Pools used the name “Solar Heat Squares” which allegedly was an imitation of SSR's trademarks “Solar Sun Rings” and “Solar Sun Squares.”

         3. In the SSR Action, SSR alleged that the Secard Pool products included a sticker bearing the name “Solar Heat Squares.” Those stickers would dissolve if submerged into water, revealing the name “Solar Sun Squares” on the product.

         4. In the SSR Action, SSR alleged that the disclaimer on the Solar Heat Squares product included a reference to the Solar Sun Squares trademark.

         5. In the SSR Action, SSR alleged that Secard Pools used a color scheme and style of printing like SSR's.

         6. In the SSR Action, SSR alleged that Secard Pools actively and knowingly engaged in the manufacture, distribution, promotion, and sale of products that copied SSR's products and “unscrupulously usurped SSR's trademark and trade dress for their own benefit.”

         7. In the SSR Action, SSR alleged that Secard Pools “intentionally adopted the Solar Heat Squares infringing mark in order to trade on and infringe SSR's Solar Sun Rings and Solar Sun Squares trademarks . . . .”

         8. In the SSR Action, SSR alleged that Secard Pools “intentionally adopted” an identical set and sequence of colors as SSR's Color Scheme to trade on and infringe SSR's trade dress.

         9. In the SSR Action, SSR alleged that Secard Pools ignored SSR's cease and desist letters and continued to manufacture, distribute and offer for sale and sell infringing products.

         10. In the SSR Action, SSR alleged that use of the Solar Heat Squares mark and the color scheme was “in bad faith, and with the intent to cause confusion.”

         11. In the SSR Action, SSR alleged that adoption of the mark and color scheme was “not accidental or innocent, ” but instead was done with a purpose to deceive the consuming public and others.

         12. In the SSR Action, SSR alleged that Secard Pools acted ...


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